The time has come to sign my electronic will. Everything else I do is electronic: paying bills, reviewing files, researching Westlaw, talking to my children. Why not my will? But does Florida presently recognize electronic wills? Wills that appear only on my computer screen and not on paper? I think it does. Here’s why:
Wills Must Be In “Writing”
The word "writing" includes handwriting, printing, typewriting, and all other methods and means of forming letters and characters upon paper, stone, wood, or other materials. The word "writing" also includes information which is created or stored in any electronic medium and is retrievable in perceivable form. F.S. §1.01(4)
So, anything that I can call up on my computer screen is a writing under Florida law. It does not matter what kind of electronic file it is, if I can retrieve it and perceive it, it is a writing. It can be a PDF, TIFF image, or Word file, and I think it satisfies the definition of a writing in Florida.
Testator and Witnesses Must “Sign”
The first section of the Florida Statutes does not define electronic signatures, and the Florida Uniform Electronic Transaction Act (F.S. § 668.50) states that it does not apply to a transaction “to the extent the transaction is governed by a provision of law governing the creation and execution of wills, codicils, or testamentary trusts.” But, back in 1996 the Legislature adopted the Florida Electronic Signature Act which says:
668.004 Force and effect of electronic signature.—Unless
otherwise provided by law, an electronic signature may be
used to sign a writing and shall have the same force and effect
as a written signature.
Notice that the statute does not require a digital signature, only an electronic signature. A digital signature must be obtained from Verisign or other companies and is more complicated than an electronic signature. Here is what the Digital Signature Guidelines Tutorial of the ABA Section of Science and Technology Information Security Committee says about digital signatures:
Digital signatures are created and verified by cryptography, the branch of applied mathematics that concerns itself with transforming messages into seemingly unintelligible forms and back again. Digital signatures use what is known as public key cryptography, which employs an algorithm using two different but mathematically related keys…Computer equipment and software utilizing two such keys are often collectively termed an asymmetric cryptosystem.
Much less is required in Florida for an electronic signature: any letters, characters, or symbols, manifested by electronic or similar means, executed or adopted by a party with an intent to authenticate a writing. So, it could just be typing your name. If you ever filed online articles of incorporation or annual reports with the Florida Division of Corporations, you “signed” it by typing in your name. That was you electronic signature. You did not have to purchase a digital (crypto) signature from Verisign. You just typed in your name as your signature.
This somewhat informal means of signing is consistent with Florida common law. In allowing testators to sign wills with marks rather than writing out their full names, the Florida Supreme Court held in 1966 that:
Rather, we hold, as do most jurisdictions, that a
testator may sign his will by making a mark. It is a matter of
fact to be proved in proper proceedings whether the testator
made the mark with the intention that it evidence his assent to
Scuttlebutt on Electronic Wills
More recently, a Colorado commentator again questioned
whether it is time for electronic wills and said:
And the discussion is not limited to Florida and the U.S.
In a recent article entitled A Critique of India’s
Information Technology Act and Recommendations for Improvement,
34 Syracuse J. Int'l L. & Com. 1 (Fall 2006), Steven Blythe
Tennessee Upholds Electronic Wills
The expected litigation ensued between the will beneficiary
and the intestate heir, with the heir claiming the will was not
properly signed, but the comment reports that the Tennessee
appellate court held that :a computer-generated signature made
by a testator comes within the description of any other symbol
or methodology executed or adopted by a party with intention to
authenticate a writing or record, and, if affixed before two or
more attesting witnesses, satisfies the requirements for a
testator to execute a will.” The comment also reports that
the court found that the testator “did make a mark by using his
computer to generate his signature in the presence of attesting
witnesses and intended this generation to serve as his
signature” and that “this computer-generation, according to the
court, was only a substitute for the use of an ink pen to affix
In admitting an electronic will to probate, the Tennessee
court did not require passage of a new probate law by the state
legislature. It relied only upon Tennessee’s existing
probate code and the Tennessee statutory definition of a
Let Florida be next. I want to sign an electronic will.
James W. Martin is a probate, real estate, and corporate lawyer in St. Petersburg, who has written for the Florida Bar Journal and News, ALI-ABA Practical Lawyer, and West Publishing, and has more information on his Web site, www.jamesmartinpa.com.